Posts Tagged ‘privacy’

Back on June 3, 2010, I warned about the possible (mis)uses of inexpensive drone technology and how such gadgets might eventually be harnessed for civilian law enforcement purposes, possibly spying on a pot dealer’s back yard. Turns out I was right. Well, not about the pot, at least not yet.

A scary report in the Los Angeles Times told of how local police in North Dakota used a Predator B drone to apprehend three men; the first known arrests of U.S. citizens with help from a Predator. The incident occurred when the suspects refused to turn over several cows that had wandered on to their property. Police showed up, the suspects brandished some shotguns and a pretty tense standoff ensued. The police left and got themselves a warrant and then called in a Predator drone to fly over the suspect’s land, hovering for four hours, transmitting video and thermal imaging all the while. The next day, police called the drone back for more spying and finally made their move when the drone determined the men were unarmed.

The Predator drones used in this incident are based at the Grand Forks Air Force Base, located in Emerado, North Dakota, and are owned and operated by the U.S. Customs and Border Protection agency. Though the FBI, DEA and a plethora of other federal agencies have used Predator drones on U.S. soil for years for surveillance purposes, this is the first reported incident where local police forces have made use of a Predator drone to watch and then apprehend suspects.

The Los Angeles Times quotes a retired U.S. General who acknowledges that drones are being used “in many areas around the country, not only for federal operators, but also for state and local law enforcement.” The Customs and Border Protection agency responsible for the apprehension in the North Dakota incident claim they have a legal authorization to use the drones in such a way. Officials insist that they indicated in their budget requests to Congress that one purpose of purchasing the Predators was for “interior law enforcement support.”

Jane Harman – former Chair of the House Homeland Security Sub-Committee – insists that “no one ever discussed using Predators to help local police serve warrants or do other basic work.” The argument from Customs is that the drones can be used on U.S. soil for law enforcement purposes not because of a new law or regulation, nor because of any Congressional mandate or Executive Order, simply because they inserted the phrase “interior law enforcement support” into their purchase order.

This “interior law enforcement support” hasn’t been limited to North Dakota. A recent article out of Houston discussed the local law enforcement excitement following their acquisition of several drones: “It’s an exciting piece of equipment for us,” Chief Deputy of Montgomery County Sherriff’s Office said. The Sherriff’s Office recently used $300,000 from a federal homeland security grant to purchase a ShadowHawk drone which they hope to take to the air in the coming months. “We envision a lot of its uses primarily in the realm of public safety – looking at recovery of lost individuals and being able to utilize it for fire issues.” However, the police aren’t willing to say the drones might not do more in the future. McDaniel said that one day they may decide to equip the drones to carry nonlethal weapons such as Tasers or a bean-bag gun.

Kirsten Bokenkamp, spokeswoman for the Houston-based American Civil Liberties Union of Texas, warned of the danger the drones pose. She sensibly pointed out that there are not enough safeguards currently in place to protect citizens from unreasonable search and seizure. The complaint has so far fallen on deaf ears.

The manufacturers of these unmanned aircraft aren’t stopping to worry about such issues; instead they’re pushing forward and aggressively courting local law enforcement. In their 2011 Annual Report, AeroVironment, Inc. (AV), the nation’s leading manufacturer of small drones, hammers home the message that future growth lies in non-military applications of their product:

As we explore opportunities to develop new markets for our small UAS, such as border surveillance, law enforcement, first response and infrastructure monitoring, we expect further growth through the introduction of UAS technology to non-military applications once rules are established for their safe and effective operation in each country’s national airspace.

The company manufactures drones so small they can be transported in the trunk of a car and launched within minutes. A single police officer could deploy and monitor such a drone. These small drones could help usher in an “Era of Surveillance,” cheap and easy access to drones capable of hovering without detection for far longer than police helicopters.

The drones are vastly different and more powerful than standard police helicopters, the current method of choice for police surveillance from above. A great example is one new type of drone already in use by the U.S. military in Afghanistan – the Gorgon Stare, named after the Greek creature of legend whose unblinking eyes turned those who looked at it to stone. According to the Washington Post, it’s “able to scan an area the size of a small town” and is able to “use artificial intelligence [to] seek out and record certain kinds of suspicious activity.” One proud U.S. General went on to declare that the “Gorgon Stare will be looking at a whole city, so there will be no way for the adversary to know what we’re looking at, and we can see everything.” No police helicopter that I’ve ever run across has such capabilities and the prospect of the Gorgon Stare making its way to America should give everyone cause for concern.

Beyond such domestic law enforcement missions, the drones are being used everywhere, silent eyes in the sky. According to a recent report, a group dedicated to the abolition of whale hunting, the Sea Shepherd Conservation Society, used an unmanned aircraft to follow suspected Japanese whalers. Drones are everywhere and apparently have unlimited potential uses. Monitoring by law enforcement, border patrol, whale watching, what’s next? Given new technology whole cities can be kept under surveillance by one tiny drone. Where does this end? Likely with your civil liberties being violated. It’s only a matter of time before a civilian law enforcement agency realizes that the contraptions would be great for checking up on marijuana growing operations. Launch a Predator and have it spend hours noiselessly circling farms, searching for telltale signs of pot production. Police can watch the stream from the comfort of their desk and swoop in after the drone has done the leg work.

The increasing use of drones for an ever-growing list of activities on U.S. soil is troubling and potentially dangerous. This is the definition of a slippery slope and little exists to stop the creep of this surveillance into every facet of law enforcement. Small marijuana growers will have to fear a silent watchman in the sky. Jane Harman, a military hawk by any definition, told the Los Angeles Times that she’s worried, saying “There is no question that this could become something that people will regret.” The use of drones by civilian law enforcement is important and the issue warrants some real attention by legislators and the public alike.

What do you think about this issue? How long before these drones are out looking for local marijuana gardens? As the wars wind down in Iraq and Afghanistan, will the defense contractors focus more on marketing these drones to your local police department? Share your thoughts in the comment section below.

I was looking at the Spring/Summer issue of Mac|Life this week, and was a little blown away at the announcement that private drones would soon be available to “surveil you’re enemies from above.” If you ever tried an old remote-control helicopter, you know that they are shaky and unreliable, and often crash. This new flying machine is a quadricopter (four rotors), and comes equipped with two video cameras. You control the drone with your iphone, and it streams the video back to your screen. Check out this YouTube clip for an idea of how it works:

You have to wonder about the writers at Mac|Life who suggested that this invention is the “best app ever”. Mac|Life’s adoring “review” of this product has no thoughtful discussion of its potential for abuse. It is one thing to understand theoretically that the C.I.A. can read a license plate off of your car, or to know that Google Earth has a grainy photo of your backyard online. But it is another thing entirely for the geeky neighbor kid to be flying this around outside your second story window. It is one thing to be “watched” from above, and another thing to be watched from all sides.

I remember in law school learning about the legal principle that states that a property owner owns his or her parcel all the way from the center of the earth up to the heavens. I looked this principle up again today, and the notion dates back to William Blackstone, who in 1766 wrote it in Latin: “Cuius est solum, eius est usque ad caelum et ad inferos.” So is it trespassing to fly this over your neighbors house and spy on him? As with most laws in Washington, the RCW code takes a while to catch up on new technology. Example: In July 21st, 2000, a perv named Richard Sorrells ran around Seattle Center with a mini-video recorder in his hand that he pointed up girls skirts. He was arrested, but he beat the charges because he never actually touched the girls, and there was no law that prohibited such filming. Well, it took about three years, but the slow-pokes in our state legislature finally figured out video cameras were now smaller than a Super 8 mm. On May 12th, 2003 the legislature enacted RCW 9A.44.115 which made such filming a felony. How long will it take for the legislature to prohibit someone from buzzing a drone through your yard while you are having a barbecue?

Would it be permissible for the police to fly a drone over your garden to look for marijuana plants growing? It will be interesting to see how how this develops. Basically, under Washington law, the police are allowed to fly over your house and look for marijuana gardens. The State Supreme Court ruled in State v. Wilson (1999) that such a flight does not invade a persons privacy as long as the planes comply with the FAA rule that fixed-wing aircraft remain at an altitude of 500 feet. Currently, the only marijuana-spotting drones in use by law enforcement in the U.S. are in Northern California. There, the Forest Service uses drones to look for large marijuana gardens on public lands. Under law, an individual has a lesser expectation of privacy while on public land, than at his home. In Europe however, the police have begun to use drones to fly-over and observe activities on private property. The police in the U.K. used a drone to catch a car thief, before being told such use was not allowed without a permit by the UK’s Civil Aviation Authority. See story. In the Netherlands, the police have begun using drones to look for marijuana grows. See video:

Is it just me or is this drone technology pretty scary? Where are we going to be in 5 or 10 years on this issue? What do you think?

Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com ........
Law Office of Steve Graham
1312 North Monroe Street, #140
Spokane, WA 99201
(509) 252-9167